John Kennedy Rapid-Fire Questions Top DOJ Nominee About Universal Injunctions Used Against Trump

2 days ago

At today's Senate Judiciary Committee hearing, Sen. John Kennedy (R-LA) questioned an Assistant AG nominee about universal injunctions used against President Trump.

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00:00Mr. Shoemake what's a universal injunction? Senator, a universal

00:06injunction is what we call an order from a court enjoining the government in a

00:11way that goes beyond the parties to the case but applies nationwide or in some

00:15cases universally to enjoin the government. Is it sometimes referred to as a nationwide

00:20injunction? Yes it is, Senator. What's the statutory basis for a federal

00:29judge issuing an order that affects people other than the parties before the

00:35court? I'm not aware of a statutory basis, Senator. There is no statutory basis, is

00:40there? No, Senator. What's the United States Supreme Court opinion which

00:48interprets the Constitution in a way that allows a federal district court

00:52judge to do this? Can you name me that case? I'm not aware of one, Senator. There

00:59isn't one, is there? I'm not aware of one, Senator. Now explain to me how this works.

01:06You have a plaintiff and you have a defendant and the plaintiff files a

01:12lawsuit and goes in front of a federal judge. Federal judge has certain

01:17jurisdiction and personam and subject matter over the parties, the people, the

01:25plaintiff and the defendant. They're the only two people in court. How can a judge,

01:34a federal judge, issue an order that affects everybody else other than those

01:41in front of him or her? How is that possible? It shouldn't be possible, Senator,

01:47but district courts do it all the time. I think on the theory that the courts

01:53need to enjoin a federal policy from going into effect and they often will

01:57enjoin it as nationwide so all non-parties are protected by that

02:01injunction. I thought that if you wanted to to affect parties who aren't in court

02:07you had to file a class action. That's correct, Senator. So why don't the

02:12federal judges, instead of issuing a universal injunction with no legal basis,

02:22tell the plaintiff, look, you got to go file a class action if you want to

02:26impact parties who aren't subject to my court. Senator, the Department of Justice

02:32makes that argument all the time in our briefs. I think in many cases class

02:36actions would be inappropriate. The plaintiffs couldn't

02:39satisfy Rule 23 to establish a class. So they couldn't? Correct. So they preferred

02:46to ask for a universal injunction? Yes. Okay. Does this encourage forum

02:57shopping? Yes, Senator. Not only does it encourage forum shopping but also

03:02district shopping and filing multiple strategic lawsuits to find one judge

03:07that will enjoin a single policy nationwide where, you know, if you have

03:12five lawsuits, only one of those five cases needs to be

03:15successful. And both sides, all sides, have used this as a way to forum

03:24shop, haven't they? I think plaintiffs, regardless of administrations, will often

03:29file cases in the most favorable forum, yes. Okay, we've established that there's

03:33no basis in statute and no basis in Supreme Court precedent for universal

03:39injunction. How about a common law? I mean, this is, universal injunction is

03:45basically an equitable remedy. Did this exist in common law courts in

03:52England on which I was based? I don't believe so, Senator. I think we've, the

03:56government has cited cases from the Supreme Court that says, you know, courts

04:00are really bound by the scope of relief that a court in equity would have

04:04granted back in England before the founding, and the courts at that time

04:09would grant relief to the parties in the case, not far beyond. A universal

04:14injunction as a remedy is unknown in English common law, is it not? I haven't

04:20done the research that far back, but I'm not aware. I have. It's unknown, wasn't

04:27part of equity. Only about 28, I'm sorry, only about 27 universal injunctions were

04:46issued in the 20th century. Does that sound about right? That sounds about

04:52right, Senator. But 86 of them were issued against President Trump in his

04:57first term, is that correct? I don't know the specific number, but they were a high

05:01number. And so far in President Trump's second term, 30 universal

05:07injunctions have been issued against him, have they not? Senator, I don't have a

05:11specific number, but that sounds about right. The universal injunction has

05:15become a weapon against the Trump administration, has it not? Yes. And tell

05:21me again in my last 10 seconds, tell me the basis of article, basis for

05:27universal injunction in Article 3. I read Article 3, which defines judicial power.

05:34Where does it mention universal injunction? It does not, Senator. It says

05:38courts are to decide the case or controversy before them, which is based

05:42on the parties to the case. So the Congress could act and say, look, federal

05:50judges, you render a decision to a plaintiff or a defendant, but you can't

05:55impact people outside of your courtroom other than through a class action.

06:00That's why God created class actions, isn't it? Yes, Senator. Thank you, Mr. Chairman.

John Kennedy Rapid-Fire Questions Top DOJ Nominee About Universal Injunctions Used Against Trump

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